• CIVIL

Beverley Anne Barclay v British Airways Plc

English and Welsh Courts 

On 17 October 2004 the Claimant Mrs Barclay boarded a British Airways Boeing 747 as a passenger to take a scheduled flight from Phoenix, Arizona to London Heathrow airport. She suffered a ligamentous injury to her right knee when she slipped as she was making her way along the row to the seat in which she intended to sit.

The basic facts are not in issue but the interpretation to be placed upon them, and their result, are hotly contested. The quantum of the Claimant's damage was agreed on the second day of the trial at just over £24,000 including interest.

Mrs Barclay's action is brought under Article 17.1 of the Montreal Convention 1999 which by virtue of Schedule 1B of the Carriage by Air Act 1961 has the force of law in England. It is common ground that at the material time the terms of the Convention governed the carriage of the Claimant from the USA to the UK, both countries having ratified the Convention which thus superseded the Warsaw Convention.

It is also common ground that the Convention makes provision for the only remedy available to the Claimant: she will succeed under the Convention or not at all. All domestic or other notions such as tort or contract are displaced by the Convention, for reasons of international consistency. It matters not whether British Airways (BA) were negligent or otherwise at fault. The Convention is all that counts.

It was held that the Claimant will pay the Defendant's costs of the action to be the subject of detailed assessment if not agreed, and the determination of any issue of the conduct of the parties in relation to costs is reserved to the costs judge. It is not endorsing any suggestion that there was any relevant misconduct: the matter is entirely reserved, and indeed it is to be hoped there will be no need for detailed assessment at all.

• CRIMINAL

Nadia Anne Harway v The Crown 

England and Wales Court of Appeal (Criminal Division) Decisions 

This is an appeal which demonstrates the importance of fashioning directions to a jury to the issues of the case. The grounds of appeal are focussed on the directions which the judge gave in relation to self-defence. On 14 April 2008 at Blackfriars Crown Court the appellant was convicted by a majority of an offence of assault occasioning actual bodily harm. She was acquitted of a racially aggravated assault. There was no dispute but that the appellant had bitten the nose of the complainant, Malika Assaouci, during the course of a drunken fight in the road outside the Hammersmith Palais. The real issue was at what stage she did so. The accounts of what occurred were, inevitably, confusing. Malika Assaouci and others suggested that the appellant started the trouble in a cab office near the Hammersmith Palais by swearing and using insulting language. After Malika Assaouci and others left the cab office a picture of events can be seen on a CCTV film. Unusually, the film is informative. Malika Assaouci and friends can be seen walking across the road and starting to climb inside a minicab. The time was about 3.00 a.m. The appellant can then be seen approaching that group either gesticulating or shouting towards them from the middle of the road. It is then clear that the complainant and the appellant started to fight, pulling each other's hair.

When giving evidence the complainant said that the appellant pulled her down to the ground, there were people on top of her and she was scared. She said that the appellant was screaming at her and that it was at that stage the appellant bit her on the nose. Thus, the prosecution case, based on that evidence, was that the bite occurred when the appellant was on top of the complainant. But it did contend, in the alternative, that even if the defendant was, as she said, pinned to the ground, to bite in self-defence was to use excessive force. This alternative was founded on the defendant's own version of events.

We have little doubt that both ladies regret the incident, induced, as it was, by drink. But the jury must have been sure, in the light of the way the judge identified the issues of fact, either that the bite had occurred at a stage when not even the defendant contended she honestly believed it was necessary to use force of that nature or that, despite the fact that the defendant may have been pinned to the ground, she used excessive force. In those circumstances, whilst we wish to emphasise that it is plain that the offence was wholly out of character in one described as "loyal, loving, kind, bright and intelligent", we are driven to the conclusion that the verdict was safe and we dismiss this appeal.